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LONNIE E. HENGST v. LINDA M. HENGST (08/30/79)

filed: August 30, 1979.

LONNIE E. HENGST
v.
LINDA M. HENGST, APPELLANT



No. 56 March Term, 1978, Appeal from the Order of the Court of Common Pleas of York County (Civil Action - in Equity for Partition), at No. 77 S 815.

COUNSEL

Samuel K. Gates, York, for appellant.

Daniel R. Kehm, York, for appellee.

Spaeth, Hester and Montgomery, JJ. Spaeth, J., files a dissenting opinion.

Author: Hester

[ 269 Pa. Super. Page 111]

Presently before the court is appellant-wife's appeal from the final order of the lower court dated March 3, 1978, wherein appellant-wife's exceptions to the Decree Nisi entered July 29, 1977, were dismissed and the Decree Nisi was adopted and entered as the final decree of the lower court.

[ 269 Pa. Super. Page 112]

In this equity action, appellant-wife claims that the assets of the Thrift Plan,*fn1 although titled in appellee-husband's name alone, are joint property or owned as tenants by the entireties and therefore subject to partition*fn2 at the rate of one-half to appellant-wife and one-half to appellee-husband.

The lower court disagreed with appellant and held that the assets of the Thrift Plan although treated during their marriage by both parties as either jointly owned or owned as tenants by the entireties was nevertheless not jointly owned nor owned by the parties as tenants by the entireties and therefore not subject to partition.

We agree with the lower court and therefore affirm.

[ 269 Pa. Super. Page 113]

The law of the Commonwealth is such that "we recognize that the findings of facts of the chancellor, who heard the testimony without a jury, approved by the court en banc, are entitled to the weight of a jury's verdict, that such findings are controlling and that the court's decree should not be reversed unless it appears that the court abused its discretion or that the court's findings lack evidentiary support or that the court capriciously disbelieved the evidence." Lanning Will, 414 Pa. 313, 316, 200 A.2d 392, 393 (1964); Sterrett v. Sterrett, 401 Pa. 583, 166 A.2d 1 (1960); Brown v. Gresh, 402 Pa. 35, 165 A.2d 629 (1960). However, where the conclusions reached by the chancellor, either of law or ultimate fact, are no more than the chancellor's reasoning from the underlying facts, such conclusions are reviewable. Shapiro v. Shapiro, 424 Pa. 120, 127, 221 A.2d 164, 168 (1966).

The salient facts may be briefly summarized as follows: The parties were divorced by decree dated October 6, 1976. Two children were born of the marriage. At the time of the lower court's adjudication, appellee had been an employee of American for 19 years and was presently a manager of one of its Acme Markets. Commencing in January of 1963, appellee had begun participating in America's Thrift Plan and had continued to participate through the time of the lower court hearing. At hearing, both parties testified that despite the facts that they did not have an agreement in writing, they both considered the Thrift Plan to be jointly owned property (R. 2, 3, 13, 17).

Notwithstanding the parties' testimony to the contrary, the Chancellor denied appellant's request for the division or partition of the assets of the Thrift Plan.

The lower court's conclusion appears to have been reached by the following steps:

1. During the marriage both parties treated the Thrift Plan as jointly owned property.

2. The Thrift Plan is in the nature of a ...


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